NEW YORK STATE CITIZENS' COALITION FOR CHILDREN, Plain tiff-Appellant,
SHEILA J. POOLE, Acting Commissioner for the New York State Office of Children and Family Services, in his official capacity, Defendant-Appellee.
stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
16th day of August, two thousand nineteen.
Plaintiff-Appellant: Grant J. Esposito, Adam J. Hunt,
Morrison & Foerster LLP, New York, NY; Brian R. Matsui,
Esq., Morrison & Foerster LLP, Washington, DC.
Defendant-Appellee: Caroline A. Olsen, Assistant Solicitor
General; Barbara D. Underwood, Solicitor General; Steven C.
Wu, Deputy Solicitor General for Letitia James, Attorney
General for the State of New York.
PRESENT ROBERT A. KATZMANN, CHIEF JUDGE, JOSE A. CABRANES,
ROSEMARY S. POOLER, PETER W. HALL, DEBRA ANN LIVINGSTON,
DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, RICHARD
J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK CIRCUIT
disposition of this appeal on April 19, 2019, an active judge
of the Court requested a poll on whether to rehear the case
en banc. A poll having been conducted and there
being no majority favoring en banc review, rehearing
en banc is hereby DENIED.
Ann Livingston, Circuit Judge, joined by Jose A.
Cabranes, Richard J. Sullivan, Joseph F. Bianco, and Michael
H. Park, Circuit Judges, dissents by opinion from
the denial of rehearing en banc.
Cabranes, Circuit Judge, dissents by opinion from
the denial of rehearing en banc.
Ann Livingston, Circuit Judge, joined by Jose A. Cabranes,
Richard J. Sullivan, Joseph F. Bianco, and Michael H. Park,
Circuit Judges, dissenting from the denial of rehearing en
vote of six to five, the active members of this Court decline
to rehear a case presenting an issue of "exceptional
importance" -an issue that now divides four United
States Courts of Appeals. Fed. R. App. P. 35(a). The panel
majority holds that the Adoption Assistance and Child Welfare
Act of 1980 (the "CWA" or the "Act"), 42
U.S.C. § 670 et seq., creates a privately
enforceable right under 42 U.S.C. § 1983 by which some
foster care parents and providers may sue States for costs
related to childrearing. In implying this right of action,
the majority tasks federal district judges across the three
States of our Circuit with setting the rates at which this
subset of foster care parents and providers should be
compensated for items such as a child's "food,
clothing, shelter, daily supervision, [and] school supplies,
'' id. § 675(4)(A), pursuant to a
statute that contains not a word of guidance for making such
judgments. In its forceful petition for rehearing
en banc, the State of New York argues that the panel
majority's holding will require States "to
prioritize spending on the limited set of children and
expenditures eligible for partial federal reimbursement, at
the expense of the much broader population of children that
New York and other States have chosen to benefit/' while
at the same time "subjecting States to the risk of
multiple, inconsistent judgments about proper foster care
reimbursement rates." Petition for Rehearing En Banc at
1, 3, New York State Citizens' Coalition for Children
v. Poole, 922 F.3d 69 (2d Cir. 2019) [hereinafter
Petition for Rehearing]. Connecticut, along with over a dozen
other States joining in an amicus brief, agrees with
New York. It too argues that the majority's privately
enforceable right will impose immense burdens on State foster
care systems and represents a "costly condition . . .
that Congress did not impose and to which the . . . States
did not agree when entering into [this] relationship with the
federal government." Brief for Amici Curiae States
Supporting Respondents at 2, New York State Citizens'
Coalition for Children v. Poole, 922 F.3d 69 (2d Cir.
2019); see also Armstrong v. Exceptional Child Care
Center, 135 S.Ct. 1378, 1389 (2015) (Breyer,
J., concurring in part and concurring in the
judgment) (noting the "increased litigation,
inconsistent results, and disorderly administration"
that result from judicial rate setting).
panel majority's decision imposes these pernicious costs
on our Circuit despite the fact that the right it identifies
is not even fairly discernible, much less unambiguously
manifest, in the text of the CWA. Congress simply did not
create an individual right to foster care maintenance
payments enforceable pursuant to § 1983 in the
"Definitions" section of this Spending Clause
legislation. See Midwest Foster Care & Adoption
Ass'n v. Kincade, 712 F.3d 1190, 1197 (8th Cir.
2013) ("[F]inding an enforceable right solely within a
purely definitional section is antithetical to requiring
unambiguous congressional intent."). In deciding to the
contrary, the panel majority misconstrues the Act and ignores
decades of Supreme Court precedent, choosing instead to
resurrect the Court's long-abandoned
"ancien regime" of readily
implied causes of action. Alexander v. Sandoval, 532
U.S. 275, 287 (2001). Because the majority's decision is
wrong, will dissipate scarce foster care dollars, and will
impose litigation burdens in this Circuit that far outweigh
the additional work required for en banc review, I
dissent from the denial of rehearing en banc.
CWA, enacted almost 40 years ago, offers fiscal incentives to
participating States "to encourage a more active and
systematic monitoring of children in the foster care
system." Vermont Dep't of Soc. & Rehab.
Servs. v. U.S. Dep't of Health & Human Servs.,
798 F.2d 57, 59 (2d Cir. 1986). As the dissent from the panel
majority's decision lays out more fully, by incentivizing
appropriate foster care arrangements, the CWA does
not in some way sub silentio grant a subset of New
York foster parents and providers a privately enforceable
right under 42 U.S.C. § 1983 to recover "foster
care maintenance payments." See Poole, 922 F.3d
at 85-101 (Livingston, J., dissenting). The panel
majority makes two fundamental mistakes in concluding to the
the first mistake: the CWA provides partial reimbursement to
participating States of "foster care maintenance
payments" made by these States on behalf of eligible
children, if the States otherwise satisfy the requirements of
the Act. See 42 U.S.C. §§ 671, 675. But
the panel majority concludes that by providing that States
"shall make" foster care maintenance payments,
id. § 672(a)(1), the CWA also imposes
a minimum foster care spending obligation on recipient
States, requiring the States to cover the entire cost of a
slew of items listed as reimbursable in § 675(4)(A),
despite the fact that the States do not even receive full
federal reimbursement for those items. Put differently, the
panel majority determines that the partial federal support
system supplied by the CWA imposes a categorical foster care
spending requirement on all recipient States,
notwithstanding any limits their legislatures may have placed
on these expenditures. This is not a reasonable
interpretation of §§ 672 and 675. These provisions
are instead best read as identifying certain categories of
State payments that are eligible for partial federal
reimbursement, but leaving to the discretion of the
States which payments to make in the first
instance. See Poole, 922 F.3d at 86-92
(Livingston, J., dissenting). State authorities
direct their own foster care programs-not federal courts.
even if §§ 672 and 675 do impose a
spending obligation on the States (and they do not), the
panel majority errs a second time in concluding that the CWA
also confers on a subset of New York caregivers a
right, enforceable under § 1983, to a monetary
amount that "cover[s] the cost of" these
"foster care maintenance payments." Poole,
922 F.3d at 77. As the panel majority is well aware,
the Supreme Court has "rejected the notion" that
its precedent "permit[s] anything short of an
unambiguously conferred right to support a cause of
action brought under § 1983." Gonzaga Univ. v.
Doe, 536 U.S. 273, 283 (2002) (emphasis added). And the
Court has reminded us that the dangers of implying
enforceable rights are particularly acute with regard to
Spending Clause legislation, which is "much in the
nature of a contract." Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981). After all,
"[t]he legitimacy of Congress' power to legislate .
. .rests on whether the State voluntarily and knowingly
accepts the terms of [this] 'contract/" and an
implied right of action constitutes a critical contractual
term. Suter v. Artist M., 503 U.S. 347, 356 (1992)
(quoting Pennhurst, 451 U.S. at 17); see also
Poole, 922 F.3d at 92-93 (Livingston, J.,
dissenting) (outlining the Court's jurisprudence in this
area); Kapps v. Wing, 404 F.3d 105, 127 (2d Cir.
2005) (recognizing that "the Court has appeared to be
increasingly reluctant to find § 1983-enforceable rights
in statutes which . . . set forth their requirements in the
context of delineating obligations that accompany
participation in federal spending clause programs").
does not come close to satisfying this demanding standard for
recognizing a privately enforceable right under § 1983
to foster care maintenance payments.  The panel majority
inexplicably charges that the dissent inappropriately
"read[s] the tea leaves" to reach this conclusion,
Poole, 922 F.3d at 79-that the dissent rests on a
mere prediction that the Supreme Court will abandon the
factors set forth in its Blessing decision to guide
judicial inquiry into whether a statute manifests an
"unambiguous [ ]" intent to create a private right,
see Blessing v. Freestone,520 U.S. 329, 340-41
(1997), when "this Court is not tasked with-and is, in
fact, prohibited from-such guesswork." Poole,
922 F.3d at 79. In reality, each of the Blessing
factors uniformly weigh against the presence in the ...